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FCC Eases Transparency Requirements for More ISPs, Hints at Coming Net Neutrality Fight

It's been most of a month now since noted net neutrality foe Ajit Pai took over the chairman's seat at the FCC. Today the Commission held its regular monthly open meeting—the first of Pai's tenure—giving us a glimpse into what we're likely to see from the Commission in coming months.

It was a smaller group of commissioners than we've seen in recent years, with just three sitting along the big table. (Two seats are currently vacant, waiting for the White House to nominate candidates.)

It was also a busier meeting, with the commission sweeping through six agenda items in the same roughly two-hour span that we've occasionally seen devoted to one or two high-profile items.

Some of the agenda items were fairly straightforward and uncontroversial. For example, the Commission voted 3-0 to launch a Notice of Proposed Rulemaking (NPRM) about the next generation of broadcast television standard, called ATSC 3.0.

That kicks off the public comment period, so that a few months down the line the FCC can have a look at all their data and decide whether to adopt a rule about the tech, which would allow for 4K over-the-air broadcasts to exist, among other upgrades.

The Commission also voted on steps to allocate spectrum to and fund broadband providers for the explicit purpose of building and enhancing broadband service in un- or underserved rural areas nationwide, particularly those that do not currently have 4G LTE mobile service.

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Some measures, however, were more contentious, such as one that exempts small internet providers from part of the net neutrality rule the Commission adopted two years ago.

Under the Open Internet Rule of 2015, internet providers are subject to a transparency rule, meaning that providers have to disclose information about "network management practices, performance, and commercial terms of service."

The idea is that an ISP has to give you accurate information about its pricing, actual broadband speeds, network latency, usage-based fees (i.e. data cap overage charges), and other relevant figures so that you, the consumer, can make an informed choice about signing up for their service.

However, according to commission chair Ajit Pai, reporting figures about network performance is too "burdensome," and commissioner Michael O'Rielly agreed.

In a 2-1 vote, the FCC decided to exempt small broadband providers—those with fewer than 250,000 customers—from reporting and transparency requirements.

The FCC announcement of the rule [PDF] says that the FCC is "protecting" small business from "needless regulation," and says the Commission vote "relieved thousands of smaller broadband providers from onerous reporting obligations."

Previously, the exemption had applied to ISPs with fewer than 100,000 customers; this carve-out will not expire for five years.

Commissioner Mignon Clyburn, dissenting, said that the measure as part of "an ongoing quest to dismantle basic consumer protections for broadband services, the majority has decided to exempt billion dollar companies from being transparent with consumers."

O'Rielly, however, said that actually he thinks an even higher number of companies, with a subscriber cut-off well above 250,000, should be exempt. Or, in fact, everyone: This measure, he said, "does not address a far more important matter, whether or not these reporting requirements should exist at all."

Pai, in the end, described the change as necessary to protect "mom and pop" ISPs, saying that, "I firmly believe that these ISPs should spend their limited capital building out better broadband to rural America, not hiring lawyers and accountants to fill out unnecessary paperwork demanded by Washington."

"Don't make rules because then businesses will spend too much money on lawyers" was also one of Pai's central arguments against adopting the Open Internet Order at all, back in 2015.

"What we are staying is if there are reporting requirements that are not necessary and that burden small providers disproportionately, by definition, requiring them to decode scarce resources to filling out paperwork as opposed to building out broadband, then that's something that's ultimately not in the interest of the consumer," Pai told reporters in a press conference after the meeting.

Pai also said that plans to dismantle net neutrality are not fleshed out yet. Asked whether the FCC or Congress plans to act first on the matter, Pai said that "We've been meeting with members of Congress, both sides of the aisle, to hear their views about the issue and so I'll be taking all the factors into account as we try to come to a decision."

Pai also answered questions about the likelihood of Congress reversing the ISP privacy rule through the Congressional Review Act, a move that Hill-watchers expect will be made soon by Rep. Marsha Blackburn (TN) and Sen. Jeff Flake (AZ).

When asked if he would prefer for Congress to kill the rule, or if he'd rather do it himself through FCC action, Pai responded, "That's entirely a decision for elected officials to make, and I don't pretend to be in a position to either prescribe to them or even recommend to them what the course of action should be."

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